The Register-Herald, Beckley, West Virginia

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June 22, 2013

Recorded evidence suppressed in drug case

BECKLEY — During a pre-trial hearing Monday for a Beckley attorney, Raleigh County Circuit Court Judge Robert A. Burnside granted defense counsel’s motion to suppress audio and video recordings.

Richard Eichert Hardison Jr., 44, a Beckley lawyer, was indicted in September 2012 on charges including delivery of a controlled substance (cocaine) and conspiracy.

According to the court order, the state placed a recording device on a confidential informant, who recorded a conversation with Hardison inside his law office.

Defense counsel Timothy J. LaFon made a motion that the recording evidence be suppressed because of a section of West Virginia code that says audio and visual recording devices are prohibited from being used at the office of someone who is licensed to practice law.

The code states: “No device designed to intercept wire, oral or electronic communications shall be placed or installed in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law, licensed to practice law in this state.”

Burnside granted the order. Raleigh County Chief Deputy Prosecuting Attorney Tom Truman objected to his ruling.

“Based upon the judge’s ruling there are no facts that would permit recording in a place of employment (not limited to a law office) if the person is licensed to practice law in this state,” Truman said.

Truman asked Burnside hypothetically about what happens if a lawyer commits murder inside his or her office and the incident is recorded. He said, “The judge indicated that there would be no exception for that if it was captured on video or audio.”

Truman said he argued that planning the commission of a crime with another person could never be a justifiable expectation that the conversation was not subject to interception.

“The state is looking at all options to reverse this ruling that provides unlimited opportunities to plan and commit crimes just because they are in a place of employment and have a license to practice law in West Virginia.”

A trial date has not yet been set, according to the prosecutor’s office.

— E-mail: wholdren@register-herald.com

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